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Monday, April 17th, 2017

Second Circuit Vacates 225-month Sentence in Child Pornography Case as Substantively Unreasonable

Today, in United States v. Jenkins, the Second Circuit concluded that a 225-month sentence for the possession and transportation of child pornography was substantively unreasonable and vacated and remanded for resentencing, concluding that the district court’s sentence “went far overboard” and was “shockingly high”  Opinion at 11, 12.

Jenkins was convicted after trial of one count of possession of child pornography (18 U.S.C. 2252A(a)(5)(B)) and one count of transportation of child pornography (18 U.S.C. 2252A(a)(1)).  He was sentenced to concurrent time of 120 months on the possession count (the statutory maximum) and 225 months on the transportation count (just below the statutory maximum of 240 months), and to 25 years of supervised release.  The child pornography he possessed (and brought with him on a family vacation to Canada) was for personal use.  He did not produce or distribute child pornography and did not attempt to contact a minor.  This …

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Categories: child pornography, guideline

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Tuesday, March 7th, 2017

The Supreme Court Holds that the Advisory Guideline Are not Subject to Vagueness Challenges

In Beckles v. United States, 580 U.S. ___, 2017 WL 855781 (March 6, 2017) the Supreme Court held that Johnson v. United States, 576 U.S. 2551, 135 S.Ct. ___ (2015), does not apply to the Guidelines’ residual clause because “the advisory Guidelines are not subject to vagueness challenges under the Due Process clause.” Slip op. at 1. In an opinion by Justice Thomas, the Court’s reasoning was based on the advisory nature of the Guidelines since United States v. Booker, 543 U.S. 220 (2005). Slip op. at 7. Because the now advisory guidelines “merely guide the district court’s discretion,” they do not implicate the vagueness doctrine’s concerns with notice and arbitrary enforcement. Slip op. at 7-9. Justice Thomas noted that the decision did “not render the advisory Guidelines immune from constitutional scrutiny,” only void-for-vagueness scrutiny; they are still subject to ex post facto rules and Eighth Amendment …

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Categories: career offender, guideline, Johnson, vagueness

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Categories: career offender, guideline, Johnson, vagueness

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Thursday, February 16th, 2017

Second Circuit Vacates Denial of Sentence Reduction

United States v. Melendez, No. 16-1019 (2d Cir. Feb. 16, 2007) (Leval, Calabresi, Carney).

In this summary order, the Circuit vacated the denial of a motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). The Court ruled that the district court (Judge Hurley) clearly erred in deciding that the defendant (a client of Federal Defenders) was legally ineligible for a sentence reduction. Judge Hurley ruled that the defendant was ineligible because, at the original sentencing, conducted by Judge Platt, the court had found him responsible for 44.8 kilograms of heroin, a quantity that precluded him from receiving a sentence reduction. The Circuit held, however, that Judge Platt never adopted the PSR’s finding of 44.8 kilograms or otherwise made a specific quantity finding. The court merely said that the PSR’s range was “accurately computed,” which would have been true if the quantity was anywhere above 10 kilograms. Thus, the …

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Categories: 3582(c)(2), drug quantity, guideline

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Tuesday, January 17th, 2017

Circuit affirms sentence despite district court’s application of Guideline range that differed from parties’ plea agreement

In United States v. Byrd, the Second Circuit affirmed a sentence despite the District Court finding an applicable guideline range different from the one agreed to by the parties in a written plea agreement.  The Circuit held that although “district courts have the discretion to give effect to Guidelines calculations in plea agreements that result in downward departure from the correct Guidelines range,” there is no affirmative obligation that the district court give effect to such calculations.  Unless the district court misunderstood its authority to depart, the decision not to depart is generally unreviewable.…

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Thursday, December 1st, 2016

The Unusual Nature of the Guidelines’ Fraud Loss Enhancements Is a Ground for Downward Variance

In an opinion written by Judge Newman, the Second Circuit today vacated the defendants’ sentences of 30 and 21 months, respectively, for food stamp fraud for the district court to consider imposing non-guideline sentences on the ground that the defendants’ Guidelines ranges were significantly increased by the loss enhancements, an unusual feature of the Guideline scheme. United States v. Algahaim, No. 15-2024(L)(2d Cir. Dec. 1 2016). The sentences here were “driven by the loss amount,” which increased the offense level from a 6-month base to levels 18 and 16 respectively. Slip op. at 9. The Court held: “Where the Commission has assigned a rather low base offense level to a crime and then increased it significantly by a loss enhancement, that combination of circumstances entitles a sentencing judge to consider a non-Guidelines sentence.” Id. at 11.

The Court acknowledged that the Commission had the authority to use loss amount …

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Categories: guideline, loss calculation, Uncategorized

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Tuesday, October 11th, 2016

The 5-level enhancement under U.S.S.G. 2G2.2(b)(3)(B) for distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value,” requires “specific, individualized evidence” of the bargained-for exchange.

Last week, the Second Circuit vacated the sentence in United States v. Bennett, No. 15-0024 (“Opinion”). The Court held that, in order to justify the 5-level enhancement under U.S.S.G. 2G2.2(b)(3)(B) for distribution of child pornography “for the receipt, or expectation of receipt, of a thing of value,” “the Government must advance specific, individualized evidence that [a defendant] provided access to his collection of child pornography to another user with the expectation that that user would provide similar access to other child-pornography files.” Opinion at 15. In this case, the Court held the 5-level enhancement was justified because the defendant had engaged in the quid pro quo exchange of passwords protecting child pornography files with other users. Despite finding that the enhancement applied, the Circuit vacated the sentence and remanded for resentencing because the District Court (Sullivan, J.) failed properly to calculate the applicable guideline to reflect the fact that, because …

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Thursday, August 25th, 2016

Court rejects IAC claim because defendant cannot show that he would not have pleaded guilty absent counsel’s mis-advice about guidelines range

Only one summary order from the Circuit today in the criminal realm: In United States v. Jeremy Viles, Docket No. 15-885-cr, the Court (Livingston, Carney, Stanceu), rejected the defendant’s claim that he should be allowed to withdraw his guilty plea based on then-counsel’s allegedly erroneous advice regarding the advisory Guidelines range he would face at sentencing. Under Circuit law, in order to meet Strickland’s prejudice component in this context, the “‘defendant must show that there is a reasonable probability that were it not for counsel’s errors, he would not have pled guilty and would have proceeded to trial.’” Order at 2 (quoting United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005)). Viles fails to do so.

Even assuming that counsel erred in telling him that he faced a range of 27 to 33 months (rather than a slightly lower range), Viles cannot show that he …

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Categories: guideline, ineffective assistance of counsel

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Wednesday, June 15th, 2016

Circuit Affirms Life Sentence for Leader of Violent Drug Trafficking Organization

There were no published opinions today.

In an unpublished opinion, United States v. Fernandini, No. 14-2203, the Second Circuit affirmed a within-Guidelines life sentence for the leader of a violent drug trafficking organization over procedural and substantive reasonableness challenges.

Fernandini pleaded guilty to (i) conspiracy to traffic narcotics; (ii) using a firearm to commit murder in furtherance of the conspiracy, 18 U.S.C. § 924(j)(1); and (iii) discharging the firearm in furtherance of the conspiracy, § 924(c)(1)(A)(iii). In affirming, the Circuit noted that “Fernandini was the leader of a notorious and ruthless gang for nearly a decade.  As gang leader, he significantly increased the quantity of narcotics the organization imported and enforced the organization’s territory with violence, including killing or ordering the killing of rival gang members.”

On the government’s consent, however, the Circuit vacated the § 924(c)(1)(A)(iii) discharging count, as it was a lesser included offense of the § …

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Categories: 924(c), guideline, life

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